US v. Dwayne Terry
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:11-cr-02054-RBH-2 Copies to all parties and the district court/agency. [999562590]. [14-4805]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE DENARD TERRY, a/k/a Dee, a/k/a Fakin Jamaican,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-02054-RBH-2)
Submitted:
March 30, 2015
Decided:
April 10, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
W. James Hoffmeyer, LAW OFFICE OF W. JAMES HOFFMEYER, Florence,
South Carolina, for Appellant. Nancy Chastain Wicker, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dwayne Denard Terry pled guilty pursuant to a written plea
agreement to one count of conspiracy to possess with intent to
distribute
and
to
distribute
5
kilograms
or
more
of
powder
cocaine, 280 grams or more of crack cocaine, and 100 kilograms
or more of marijuana, in violation of 21 U.S.C. § 846 (2012).
Terry
and
11(c)(1)(C)
the
Government
agreement,
would be appropriate.
negotiated
stipulating
a
that
Fed.
a
R.
Crim.
240-month
P.
sentence
The district court accepted the plea and
imposed the stipulated sentence.
In accordance with Anders v.
California, 386 U.S. 738 (1967), Terry’s counsel has filed a
brief
certifying
that
there
are
no
meritorious
issues
for
appeal, but questioning the validity of Terry’s guilty plea.
Although notified of his right to do so, Terry has not filed a
supplemental brief.
We affirm.
Terry challenges his plea on the ground that the district
court did not take special care to assure that his plea was
knowing and voluntary, where his plea agreement was linked to
that of his codefendant.
defendant
voluntarily,
A guilty plea is valid where the
knowingly,
and
intelligently
pleads
guilty “with sufficient awareness of the relevant circumstances
and likely consequences.”
748 (1970).
Brady v. United States, 397 U.S. 742,
To assure that this standard is satisfied, Fed. R.
Crim. P. 11 requires a district court to “inform the defendant
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determine
that
he
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understands,
the
nature
of
the
charge(s) to which the plea is offered, any mandatory minimum
penalty,
the
maximum
possible
penalty
and
various
rights.”
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
appropriately
presumption
conducted
that
the
Rule
plea
11
proceeding
is
final
and
raises
“a
An
strong
binding.”
United
States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003) (internal
quotation
marks
omitted).
Here,
the
district
court’s
substantial compliance with the requirements of Fed. R. Crim. P.
11 raises this presumption in favor of the validity of Terry’s
plea.
The
promise
of
leniency
to
a
third
party
in
a
plea
agreement, although a legitimate prosecutorial tool that does
not render a plea per se invalid, “might pose a greater danger
of inducing a false guilty plea by skewing the assessment of the
risks a defendant must consider.”
F.2d
608,
613
(4th
Cir.
1990)
United States v. Morrow, 914
(internal
quotation
marks
omitted); see also Harman v. Mohn, 683 F.2d 834, 838 (4th Cir.
1982).
Accordingly, “[s]pecial care must be taken to determine
the voluntariness” of such a plea.
Morrow, 914 F.2d at 613.
Here, the Government acted in good faith by securing an
indictment
against
both
defendants
before
initiating
plea
negotiations and by informing the district court that Terry’s
and his codefendant’s plea agreements were linked together.
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See
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Harman, 683 F.2d at 837 (prosecutor negotiated in good faith
where he secured indictment against third party before offering
leniency); Morrow, 914 F.2d at 613 (questioning validity of plea
where Government did not inform district court of promise of
leniency
to
third
party).
Furthermore,
Terry
and
his
codefendant were represented by different attorneys, eliminating
the possibility that Terry’s attorney sacrificed his bargaining
position to secure a plea agreement for the codefendant.
See
Harman, 683 F.2d at 837-38 (underscoring importance of separate
counsel where plea involves promise of leniency to third party).
Finally, Terry readily admitted guilt at the plea hearing and
did not raise any issue regarding the validity of his plea when
the district court formally accepted the plea at sentencing, a
time when Terry was in the courtroom outside the presence of his
codefendant.
Accordingly, the record does not support the claim
that Terry’s plea was involuntary or unknowing.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
We
therefore affirm Terry’s conviction and the term of supervised
release
appeal
imposed
as
to
by
his
the
district
sentence
of
court.
We
imprisonment.
dismiss
See
18
Terry’s
U.S.C.
§ 3742(a), (c) (2012); United States v. Calderon, 428 F.3d 928,
932 (10th Cir. 2005) (sentence imposed in accordance with Fed.
R. Crim. P. 11(c)(1)(C) plea agreement and statute governing
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offense of conviction not subject to appellate review).
This
court requires that counsel inform Terry, in writing, of the
right to petition the Supreme Court of the United States for
further review.
If Terry requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel
may
move
representation.
in
this
court
for
leave
to
withdraw
from
Counsel’s motion must state that a copy thereof
was served on Terry.
We dispense with oral argument because the facts and legal
contentions
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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